Defendant’s Right to Counsel Before Consenting to Chemical Test in Drunk Driving Case
Most people are aware that Miranda warnings must be given an accused before he or she is subjected to custodial interrogation. The warnings are intended to protect the privilege against self-incrimination, and the Fifth Amendment right to counsel was created to protect that privilege. However, if the privilege against self-incrimination is not implicated, the warnings are not required, and there is no right to counsel. The United States Supreme Court has held that “physical” evidence may be obtained from an accused without running afoul of the privilege. Therefore, the right to counsel privilege has been held inapplicable to physical or performance tests and chemical tests of bodily substances.
The States are split on whether a motorist has a right to contact an attorney before making the decision of whether to take a chemical test. Only a few of the implied consent statutes specifically provide that the motorist has a right to consult an attorney before making the decision of whether to consent to a chemical test. Some states specifically state that there is no such right to an attorney before consenting to a chemical test.
The State of Oregon has determined that a motorist does have a right to consult an attorney before submitting to a chemical test. The Oregon Supreme Court held that the Fourteenth Amendment guarantees to the defendant a “reasonable” opportunity to communicate with an attorney before deciding whether to submit to a chemical test. The Minnesota Supreme Court has found a similar right under its state constitution. However, even states that do find such a right have limited the right. The motorist generally only has the right to a reasonable opportunity to contact an attorney. The right is limited to the amount of time as would not adversely affect test results. Further, the right to communicate with an attorney does not require the actual physical presence of the attorney.
States that have held that a motorist has no right to counsel before deciding whether to submit to a chemical test have generally based their decisions on the fact that administrative suspension of a driver’s license is a civil procedure. Still other states have based their decisions upon the idea that the privilege against self-incrimination does not extend to the withdrawing of a sample and the use of its analysis in evidence.
There is a distinction between the right to consult counsel before deciding whether to submit to chemical testing for purposes of criminal proceedings and the right to consult counsel before making that decision for purposes of civil license suspension proceedings. A motorist who is refused an opportunity to speak with an attorney before deciding whether to submit to testing and who then refuses testing may find that his or her refusal will be considered valid for purposes of a license suspension but invalid and inadmissible for purposes of a criminal trial.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.